This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Notice given by a railway or other public company of their intention to exercise a power of compulsorily taking land (l), constitutes a contract binding on the company to the extent of fixing what land is to be taken (m), and binding on the owner so as to disable him from creating any interest in the land, subsequent to the date of the notice, which will prejudice the company as regards compensation or otherwise (n), even though the purchaser of such interest has obtained the legal estate and paid his money in ignorance of the notice to treat (o). But the interest of the purchaser will be good as against the owner, and, on completion of the sale to the company, will be transferred to the purchase-money (p); and it is conceived that, though, on completion, the company will have an immediate right to the possession of the land, still the legal estate will be outstanding in the purchaser, and should be got in. If he refuses to convey the company should, it seems, either pay the compensation money into Court when ascertained and execute a deed poll under s. 75 or s. 77, or take a conveyance from the original owner and obtain a vesting order of the legal estate. The notice cannot be withdrawn by the company without the consent of the landowner (q); and the price, if not settled by agreement, must be determined in the manner pointed out by the Act of Parliament (r): but the mere service of the notice does not constitute a contract by the landowner for the sale of his land; nor is there, strictly speaking, any contract between the parties until they have come to some definite arrangement as to the terms, or until the value of the land to be taken has been ascertained by arbitration, or a jury (s).
Notice by or to railway companies. etc.:
(l) As to the extent of such powers, with reference to the R. C. C. Act, 1845, s. 16, see Cother v. M. R. Co., (1848) 2 Ph. 469; 17 L. J. Ch. 235; Beardmer v. L. & N. W. R. Co., (1849) 1 Mac. & G. 112; 18 L. J. Ch. 432; Sadd v. Maldon R. Co., (1851) 6 Ex. 143; 20 L. J. Ex. 102. The saving of expense to the railway company does not constitute necessity within this section; R. v. Wycombe R. Co., (1867) L. R. 2 Q. B. 310; 36 L. J. Q. B. 121; Fenwich v. East London R. Co., (1875) 20 Eq. 544; 44 L. J. Ch. 602; Pugh v. Golden Valley R. Co., (1880) 15 Ch. D. 330; 49 L. J. Ch. 721; and Morris v. Tottenham, &e. R. Co., 1892, 2 Ch. 47; 61 L. J. Ch. 215. A company cannot tunnel through land without taking the surface; Sparrow v. O. W. & W.r. Co., (1852) 2 D. M. & G. 108; 21 L. J. Ch. 731; Pinchin v. Blackwall R. Co., (1854) 1 K. & J. at pp. 46, 47, 66; 5 D. M. & G. 851; 24 L. J. Ch. 417; Met. Dist. R. Co. v. Cosh, (1886) 13 Ch. D. 607; 49 L. J. Ch. 277; Tiverton R. Co. v. Loosemore, (1884) 9 A. C. 480, 503; 53 L. J. Ch. 812; and when given authority to "appropriate" the subsoil without taking the surface, must comply with the provisions of the L. C. C. Act as to the purchase of land; Farmer v. Waterloo & City R. Co., 1895, 1 Ch. 527; 64 L. J. Ch. 338.
(m) Adams v. Blackwall R. Co., (1850) 2 Mac. & G. 118; 19 L. J. Ch. 557.
(n) Ex p. Edwards, (1871) 12 Eq. 389; 40 L. J. Ch. 697; Wilkins v. Birmingham Corp., (1883) 25 Ch. D. 78, 80; 53 L. J. Ch. 93.
(o) Mercer v. Liverpool, etc. R. Co., 1903, 1 K. B. 652; 72 L. J. K. B. 128; 1904, A. C. 461.
(p) Carnochan v. Norwich & S. R. Co., (1858) 26 Beav. 169.
Not simpliciter a contract.
Where the landowner, after service of the notice, stated the price which he was willing to take, but died before his offer was accepted, it was held that, although the purchase was afterwards completed at that price, there was no contract binding on the heir (t). Where, however, the price is ascertained, either by arbitration '(u) or by the valuation of two surveyors (a?), or by agreement, or the verdict of a jury:(y), the contract is complete, and may be specifically enforced by or against the company (z). Where notice is served on a lessee, who is restrained from alienating without his lessor's licence, the necessity of obtaining such licence is taken away by the operation of the Act (a).
(q) Tawney v. Lynn etc. R. Co., (1847) 16 L. J. Ch. 282; and see R. v. Birmingham & Oxford R. Co., (1850) 15 Q. B. 634; affd. 647; 20 L. J. Q. B. 304; and see the Abandonment of Railways Act, 1850, s. 20, recognizing the principle as respects abandoned lines; Barker v. N. S. R. Co., (1847) 5 Rail. C. 401; 2 De G. & S. 55; L. & Y. R. Co. v. Evans, (1851) 15 Beav. 331; Blount v. Great S. & W. R. Co., (1851) 2 Ir. Ch. R. 40; Lord Salisbury v. G. N. R. Co., (1852) 17 Q. B. 840; 21 L. J. Q. B. 185; Edinburgh R. Co. v. Leven, (1852) 1 Macq. 284. See also the Abandonment of Railways Act, 1869; and Re Potteries R. Co., (1883) 25 Ch. D. 251; 53 L. J. Ch. 556; Re Ruthin R. Act, (1886) 32 Ch. D. 438; 56 L. J. Ch. 30.
(r) See R. v. Hungerford Market Co., (1832) 4 B. & Ad. 327; Salmon v. Randall, (1838) 3 M. & C. 439; Stone v. Commercial R. Co., (1839) 4 M. & C. 124; Eccl. Comrs. v. Comrs. of Sewers, (1880) 14 Ch. D. 305; Catling v. G. N. R. Co., (1870) 18 W. R. 121; Walker v. E. C. R. Co., (1848) 6 Ha. 594; Stamps v. Birmingham & S. V. R. Co., (1848) 2 Ph. 673; 17 L. J. Ch. 431; Burkinshaw v. Birmingham, etc. R. Co., (1850) 5 Ex. 475; 20 L. J. Ex. 246; sup. p. 76; inf., Ch. X. s. 5; Adams v. Blackwall R. Co., (1850) 2 Mac. & G. 118; 19 L. J. Ch. 557; and see Grierson v. Cheshire Lines Committee, (1874) 19 Eq. 83; 44 L. J. Ch. 35.
(s) Haynes v. H., (1861) 1 Dr. & S. 426; 30 L. J. Ch. 578, disapproving Walker v. E. C. R. Co., (1848) 6 Ha. 594; and see, too. Adams v. Blackwall R. Co., sup.; Regent's Canal Co. v. Ware, (1857) 23 Beav. 575; 26 L. J. Ch. 566.
Notice by a company under the L. C. C. Act, of their intention to take part only of any house, or other building or manufactory, does not amount to an agreement to take the whole, although under s. 92 of the Act the owner may, by counter-notice, which need not be in writing (b), require the company to take the whole or nothing (c): and thereupon the Court will restrain the company from taking less than the whole (d): the effect of the landowner's counter-notice being to arrest the operation of the company's notice, conditionally on the landowner's being able and willing to sell the whole: but if he declines, or is unable so to do, the company's notice revives (e). The words "other building" in e. 92 mean other building in the nature of a house, although in ordinary language it would not be described as a house; they do not include (for example) the entire undertaking of the Regent's Canal and Dock Co. (f).